Virginia same-sex marriage case gets class action status

When the U.S. Supreme Court delivered major victories to proponents of same-sex marriage in two cases last June, it declined to rule on whether states may constitutionally ban the unions. That question is now working its way through the state courts via 47 federal and state cases challenging the constitutionality of same-sex marriage bans in the 24 states that have them, according to The Washington Post.

Two cases in Virginia will be among the most closely watched: One was ruled a class action on Friday, and the other has a hearing tomorrow.

Virginia is drawing so much attention in part because the state’s newly elected attorney general, Democrat Mark Herring, announced in late January he would not defend the state’s same-sex marriage ban but would join with the plaintiffs in a case against the state in the U.S. District Court in Norfolk.

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The plaintiffs in that case are a Virginia couple who want to marry and a couple who married in California in 2008 but now live in Virginia. The state’s current laws won’t allow the California woman to adopt her partner’s 15-year-old daughter. The woman will plead their case during a hearing tomorrow in Norfolk.

Last Friday, a federal court in Harrisonburg certified as a class action a case involving two lesbian couples denied marriage licenses. The plaintiffs in that case now will represent all same-sex couples in Virginia who want to get married and those who have already been married in other jurisdictions.

Attorneys for the Harrisonburg plaintiffs said the ruling means every same-sex couple in the state has “become part of the fight against the state’s discriminatory constitutional and statutory marriage bans.”

Virginia conservatives are incensed at Herring’s refusal to uphold state law, but there’s not much they can do, even as the cases move forward. Last Friday, Republicans in the Virginia House gave preliminary approval for a bill that would allow the legislature to hire its own lawyer to defend the state’s constitution if Herring won’t. That bill is extremely unlikely to be approved by the Democratic-controlled state Senate or the new Democratic governor, Terry McAuliffe.

Del. Bob Marshall drafted a letter signed by 53 other members of the House asking McAuliffe to appoint a special counsel to defend the marriage amendment. McAuliffe declined. Last week, 24 members signed a follow-up letter asking McAuliffe to direct the attorney general to withdraw from the case and withdraw his brief.

“I think the public is angry and disappointed,” said Republican state Sen. Richard Black. “[Herring] swore an oath to uphold the state Constitution, and has turned and violated it in less than two weeks.”

Victoria Cobb, president of the Family Foundation of Virginia, admitted other attorneys general have refused to defend the state’s laws, but they appointed outside counsels to represent the state. “Mr. Herring has just jumped in and flipped sides on the case,” she said.

John Eastman, chairman of the board for the National Organization of Marriage, argues Herring’s stance rises to the level of “malfeasance,” which would require his impeachment under Section 17 of the state constitution. “If I were to do that in private practice, I would disbarred, and I think the people of Virginia should disbar him by removing him from office,” he said.

That’s not likely either, but John Suthers, the attorney general of Colorado, criticized Herring sharply today by noting in a Washington Post op-ed that, with rare exceptions where the U.S. Supreme Court has already ruled, attorneys general are supposed to defend even laws they don’t like. But in Virginia, Pennsylvania, and California, attorneys general are abusing “the power entrusted to our position by refusing to defend their states’ bans on same-sex marriage in court.” The “litigation veto” may be popular with a political base, he wrote, but “in the longer term, this practice corrodes our system of checks and balances, public belief in the power of democracy, and ultimately the moral and legal authority on which attorneys general must depend.”

In the Norfolk and Harrisonburg lawsuits, the state’s ban on same-sex marriage is being defended by clerks in the local courts, with the help of Alliance Defending Freedom in Norfolk.